Hazardous Waste Identification Rule

The hazardous waste identification rule has finally been signed by the EPA Administrator. It was just published on November 30, 1998 - 63 FR 65874 - see below to download a copy of the rule as ASCII text or an Adobe PDF file.

EPA ISSUES REGULATIONS TO MAKE IT EASIER (EPA SAYS) TO TREAT, STORE AND DISPOSE OF HAZARDOUS REMEDIATION WASTE

EPA issued regulations that it says will make it easier to treat, store and disposal of hazardous remediation waste. The Hazardous Waste Identification Rule for Contaminated Media (also known as the HWIR-Media Rule) under the Resource Conservation and Recovery Act (RCRA) is expected to eliminate many of the existing regulatory disincentives to remediation, making it faster and easier to cleanup hazardous waste sites. Specifically, the rule:

Makes it easier to obtain permits for treating, storing and disposing of cleanup wastes;

Provides that obtaining these permits will not subject owners and/or operators to facility-wide corrective action;

Creates a new kind of unit called the "staging pile" that allows more flexibility in temporarily storing remediation wastes during cleanup;

·Excludes dredge material from RCRA hazardous waste requirements if the wastes are managed under an appropriate permit under the Marine Protection, Research and Sanctuaries Act or the Clean Water Act;

· Makes it faster and easier for states to receive authorization when they update their RCRA programs to incorporate revisions to the federal RCRA regulations.

These regulations are effective on June 1, 1999. The requirements of this rule are optional for authorized state RCRA programs to adopt because they are less stringent then the existing requirements. EPA decided not to pursue broad regulatory reform at this time and has chosen to retain the Corrective Action Management Units (CAMU) rule as it currently exists (see 40 CFR Section 264.552).

Hazardous Remediation Waste Management Requirements (HWIR-media)

SUMMARY: As part of President Clinton's March 1994 environmental regulatory reform initiative, the United States Environmental Protection Agency (EPA) is issuing new requirements for Resource Conservation and Recovery Act (RCRA) hazardous remediation wastes treated, stored or disposed of during cleanup actions. These new requirements make five major changes: First, they make permits for treating, storing and disposing of remediation wastes faster and easier to obtain; second, they provide that obtaining these permits will not subject the owner and/or operator to facility-wide corrective action; third, they create a new kind of unit called a ``staging pile'' that allows more flexibility in storing remediation waste during cleanup; fourth, they exclude dredged materials from RCRA Subtitle C if they are managed under an appropriate permit under the Marine Protection, Research and Sanctuaries Act or the Clean Water Act; and fifth, they make it faster and easier for States to receive authorization when they update their RCRA programs to incorporate revisions to the Federal RCRA regulations.

DATES: These final regulations are effective on June 1, 1999.

ADDRESSES: Supporting materials are available for viewing in the RCRA Information Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification Number is F-98-MHWF-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. To review docket materials, it is recommended that the public make an appointment by calling (703) 603-9230. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15/page. The index and some supporting materials are available electronically. See the Supplementary Information section for information on accessing them.

Outline

The information presented in this preamble is organized as follows:

I. Overview InformationA. Why do This Rule and Preamble Read so Differently From Other Regulations?B. What Law Authorizes This Rule?II. Background InformationA. What Problems Does Today's Rule Address?1. Response-oriented Programs Have Different Objectives and Incentives Than Prevention-oriented Programs2. LDRs, MTRs, and Permitting Raise Problems When Applied to Remediation WastesB. How has EPA Tried to Solve These Problems in the Past?C. How did the Proposed Rule Attempt to Solve These Problems?1. The ``Bright Line'' Approach for Contaminated Media2. Other Options Within the ``Bright Line'' Approach3. The ``Unitary'' Approach--An Alternative to the ``Bright Line'D. What General Comments did EPA Receive About the Two Major Proposed Options?E. What did EPA Decide to do After Considering Those Comments?III. Definitions Used in this Rule (Sec. 260.10)A. Corrective Action Management Unit (CAMU)--Changes to the Existing Definition, and Changes to the CAMU and Temporary Unit Regulations at Secs. 264.552(a) and 264.553(a)1. Definition of CAMU2. Secs. 264.552 and 264.553B. Remediation Waste--Changes to the Existing DefinitionC. Remediation Waste Management Site and Facility--New Requirements for Remediation Waste Management Sites1. EPA Changed the Term From ``Media Remediation Site'' in the Proposal to ``Remediation Waste Management Site'' in the Final Rule2. EPA has Created Different Requirements for Remediation Waste Management Sites than for Facilities Managing ``As-generated'' Hazardous Wastes3. Differences Between the Proposed Definition of Media Remediation Site and the Final Definition of Remediation Waste Management Site4. Remediation Waste Management Sites are Not Subject to Facility-wide Corrective Action5. Remediation Waste Management Sites are Excluded From Only the Second Part of the Definition of Facility6. FacilityD. Staging Pile--A New Kind of Unit1. Differences Between the Definition of Staging Pile and the Existing Definition of Pile2. Differences Between the Proposed Definition of Remediation Pile and the Final Definition of Staging PileE. Miscellaneous Unit--An Edit to the Existing DefinitionIV. Information on Remedial Action Plans (RAPs) (Secs. 270.2, 270.68 and 270.80-270.230)

General Information About RAPs

A. What are EPA's Objectives for RAPs?B. What is a RAP? (Secs. 270.68, 270.2 and 270.80)1. The Differences Between a RAP and a Traditional RCRA Permit2. Some Advantages of a RAP Compared to a Traditional RCRA Permit3. Differences Between ``Remediation Management Plans'' in the Proposal and ``Remedial Action Plans'' in the Final RuleC. When do I need a RAP? (Sec. 270.85)1. What Activities Require RCRA Permits?D. Does my RAP Grant me Any Rights or Relieve me of Any Obligations? (Sec. 270.90)

Applying for a RAP

E. How do I Apply for a RAP? (Sec. 270.95)F. Who Must Obtain a RAP? (Sec. 270.100)G. Who Must Sign an Application for a RAP? (Sec. 270.105)H. What Must I Include in my Application for a RAP? (Sec. 270.110)1. Description of the Specific Content Requirements2. Comments on the Contents of RAPs3. Contents of RAPs in the Proposal that are Not Required in the Final RuleI. What if I Want to Keep this Information Confidential (Sec. 270.115)J. To Whom Must I Submit my RAP Application? (Sec. 270.120)K. If I Submit my RAP Application as Part of Another Document, What Must I do? (Sec. 270.125)1. Provisions From the Proposal that are Not Included in the Final Rule

Getting a RAP Approved

L. What is the Process for Approving or Denying my Application for a RAP? (Sec. 270.130)M. What Must the Director Include in a Draft RAP? (Sec. 270.135)1. Provisions of the Proposal that are Not in the Final RuleN. What Else Must the Director Prepare in Addition to the Draft RAP or Notice of Intent to Deny? (Sec. 270.140)O. What are the Procedures for Public Comment on the Draft RAP or Notice of Intent to Deny? (Sec. 270.145)1. A Description of the Requirements2. Commenters Requested More FlexibilityP. The Importance of Public Involvement in the RAP ProcessQ. How Will the Director Make a Final Decision on my RAP Application? (Sec. 270.150)1. A Description of the Requirements2. Comments on the Proposed RequirementsR. May the Decision to Approve or Deny my RAP Application be Administratively Appealed? (Sec. 270.155)S. When Does my RAP Become Effective? (Sec. 270.160)T. When May I Begin Physical Construction of New Units Permitted Under the RAP? (Sec. 270.165)

How May my RAP be Modified, Revoked and Reissued, or Terminated?

U. After my RAP is Issued, How May it be Modified, Revoked and Reissued, or Terminated? (Sec. 270.170)V. For What Reasons May the Director Choose to Modify my Final RAP? (Sec. 270.175)W. For What Reasons May the Director Choose to Revoke and Reissue my Final RAP? (Sec. 270.180)X. For What Reasons May the Director Choose to Terminate my Final RAP, or Deny my Renewal Application? (Sec. 270.185)Y. May the Decision to Approve or Deny a Modification, Revocation and Reissuance, or Termination of my RAP be Administratively Appealed? (Sec. 270.190)Z. When Will my RAP Expire? (Sec. 270.195)AA. How May I Renew my RAP if it is Expiring? (Sec. 270.200)BB. What Happens if I Have Applied Correctly for a RAP Renewal But Have Not Received Approval by the Time my Old RAP Expires? (Sec. 270.205)

Operating Under Your RAP

CC. What Records Must I Maintain Concerning my RAP? (Sec. 270.210)DD. How are the Time Periods in the Requirements in this Subpart and my RAP Computed? (Sec. 270.215)EE. How May I Transfer my RAP to a New Owner or Operator? (Sec. 270.220)FF. What Must the State or EPA Region Report About Non-compliance with RAPs? (Sec. 270.225)

Obtaining a RAP for an Off-site Location

GG. May I Perform Remediation Waste Management Activities Under a RAP at a Location Removed From the Area Where the Remediation Wastes Originated? (Sec. 270.230)HH. Comparison of the RAPs Process to that for Traditional RCRA Permits

A. Introduction and BackgroundB. A Summary of Principal Changes From the Proposal1. Changes From the Proposal2. Consistent With the ProposalC. What is a Staging Pile? (Sec. 264.554(a))D. How is a Staging Pile Designated? (Sec. 264.554(b))E. What Information Must I Provide to get a Staging Pile Designated? (Sec. 264.554(c))F. What Performance Criteria Must the Staging Pile Satisfy? (Sec. 264.554(d))1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))2. Decision Factors for Staging Piles (Sec. 264.554(d)(2))G. May a Staging Pile Receive Ignitable, Reactive, or Incompatible Wastes? (Sec. 264.554(e))H. How do I Handle Incompatible Remediation Wastes in a Staging Pile? (Sec. 264.554(f))I. Are Staging Piles Subject to Land Disposal Restrictions (LDRs) and Minimum Technological Requirements (MTRs)? (Sec. 264.554(g))J. How Long May I Operate a Staging Pile? (Sec. 264.554(h))K. May I Receive an Operating Term Extension for a Staging Pile? (Sec. 264.554(i))L. What is the Closure Requirement for a Staging Pile Located in a Previously Contaminated Area? (Sec. 264.554(j))M. What is the Closure Requirement for a Staging Pile Located in an Uncontaminated Area? (Sec. 264.554(k))N. How May my Existing Permit (for Example, RAP), Closure Plan, or Order be Modified to Allow me to Use a Staging Pile? (Sec. 264.554(l))O. Is Information About the Staging Pile Available to the Public? (Sec. 264.554(m))P. What is the Relationship Between Staging Piles, Corrective Action Management Units, and the Area of Contamination Policy?

VIII. Corrective Action Management Units (CAMUs) (Sec. 264.552)

IX. Dredged Material Exclusion (Sec. 261.4(g))

A. What is the Dredged Material Exclusion?B. Regulation of Dredged Material Under CWA and MPRSAC. Dredged Material and RCRA ApplicabilityD. Determination of Regulatory JurisdictionE. Clarification of Future PracticeF. Comments on the Dredged Material ExclusionG. Dredged Material as a Solid WasteH. Clarification of Terms Related to Dredged and Fill MaterialI. Normal Dredging Operations and the ExclusionJ. The Exclusion of Nationwide Permits

X. State Authority (Sec. 271.1(j))

A. Applicability of Rules in Authorized StatesB. Effect on State Authorization1. Staging PilesC. Authorization for Today's RuleD. Authorization of State Non-RCRA RAP Authorities

XI. Abbreviated Authorization Procedures (Sec. 271.21(h))

A. Existing Authorization ProcessB. Summary of Comments on the August 22, 1995 ProposalC. Basis and Rationale for Today's New ProceduresD. Rules Listed in Table 1 to Sec. 271.21 to Which the Abbreviated Procedure AppliesE. Use of Today's Abbreviated Procedure for the Authorization of Previously Promulgated RulesF. Final Abbreviated Authorization ProceduresG. Authorization Application RequirementsH. Procedures for Reviewing and Approving ApplicationsI. EPA's Decision to Not Promulgate Proposed Category 1 and 2 ProceduresJ. Improvements to the Existing Authorization Process

XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g),

270.11(d), and 270.42 Appendix I)

XIII. How Does Today's Rule Relate to Other EPA Regulations, Initiatives and Programs?

I. Overview Information

A. Why do This Rule and Preamble Read so Differently From Other Regulations?

Today's regulatory language and accompanying preamble are written in a ``readable regulations'' format. The authors tried to use active rather than passive voice, plain language, a question-and-answer format, the pronouns ``we'' for EPA and ``you'' for the owner/operator (in the regulatory text), and other techniques to make it easier for readers to find and understand the information in today's rule and preamble.This new format is part of the Agency's ongoing efforts at regulatory reinvention, and may be unfamiliar to readers as it looks very different from the existing regulatory text of the Parts affected by today's rule. However, the Agency believes that this new format will increase readers' abilities to understand the regulations, which should then increase compliance, make enforcement easier, and foster better relationships between EPA and the regulated community.All of the requirements found in today's final regulations, including those set forth in table format, constitute binding, enforceable legal requirements. The plain language format used in today's final regulations may appear different from other rules, but it establishes binding, enforceable legal requirements just as those in the existing regulations.

B. What Law Authorizes This Rule?

These regulations are finalized under the authority of sections 2002(a), 3001, 3004, 3005, 3006, 3007 and 7004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6924, 6925, 6926, 6927 and 6974.

II. Background Information

A. What Problems Does Today's Rule Address?

Currently, hazardous wastes managed during cleanup are generally subject to the same RCRA Subtitle C requirements as newly generated hazardous wastes. Often those Subtitle C requirements are not appropriate for the cleanup scenario, as described below.1. Response-oriented Programs Have Different Objectives and Incentives Than Prevention-oriented ProgramsSince 1980, EPA has developed a comprehensive regulatory framework under Subtitle C of RCRA for identifying, generating, transporting, treating, storing and disposing of hazardous wastes. The RCRA program is generally considered prevention-rather than response-oriented. The regulations center around two broad objectives: to prevent releases of hazardous wastes and constituents through a comprehensive and conservative set of management requirements (commonly referred to as ``cradle-to-grave management''); and to minimize the generation and maximize the legitimate reuse and recycling of hazardous wastes. However, in the remediation programs, EPA wants to develop a regulatory regime that encourages people to cleanup contaminated areas thereby generating potentially large volumes of hazardous waste.The RCRA regulations constitute minimum national standards for managing hazardous wastes. With limited exceptions, they apply equally to all hazardous wastes, regardless of where or how generated, and to all hazardous waste management facilities, regardless of how much government oversight any given facility receives. To ensure an adequate level of protection nationally, the RCRA regulations have been conservatively designed to ensure proper management of hazardous wastes over a range of waste types, environmental conditions, management scenarios, and operational contingencies. This causes remediation activities to be subject to conservative, and often inappropriate requirements. For example, all waste piles must have a leachate collection and removal system under Sec. 264.251(a)(2). This is appropriate when highly concentrated wastes will be stored in a pile for an extended time, but may not be necessary for less-concentrated wastes, or shorter-term activities, or cleanup actions when the level of oversight is high. However, to account for any activities that may take place nationally, EPA wrote the regulations conservatively to require all waste piles to comply with these requirements, even when they will contain less-concentrated waste for a short time. Nationally applicable requirements must be written in this manner to provide protective requirements for the highest risk activities that the regulations allow.As opposed to requirements designed for on-going waste management, remediation activities often involve less-concentrated wastes, one-time activities, and shorter-term activities. Remediation activities are also conducted under close EPA or State oversight. However, the current regulations do not allow EPA or the State to modify the requirements for piles, or many other Subtitle C requirements, to make them more appropriate for the specific circumstances of the remediation taking place.In administering current RCRA regulations for hazardous waste generated during cleanup, EPA and States have recognized fundamental differences in both incentives and objectives for prevention- and response-oriented programs. In prevention-oriented programs, the regulations require taking appropriate precautions against causing contamination before an activity takes place, such as the regulations that require liners and leachate collection systems. Also, because the regulations provide an incentive to minimize waste production, from the beginning, the activity is planned and managed to carefully control the appropriate factors such as amount of waste produced, concentrations, and handling practices to prevent unacceptable situations such as releases. However, in administering remedial programs such as Superfund and the RCRA Corrective Action program, EPA and the States already face an unacceptable situation (contaminated sites) that must be remedied. Response-oriented programs must address already existing problems. Response-oriented programs cannot pre-determine the location of the contamination, but must respond where contamination has already occurred, which may be close to sensitive ecosystems or populated areas. Response-oriented programs cannot control the volumes or concentrations of remediation wastes, but must manage what wastes have already been released into the environment in varying volumes, concentrations and matrices. Often the site-specific situations facing response-oriented programs make waste management difficult, such as complex matrices and combinations of constituents of concern, or concerns over on-site treatment or disposal units to manage the wastes that must be cleaned up.In a prevention-oriented system, if the community objected to building new on-site units, the facility could decide not to engage in business practices that would generate the waste that would need to be managed. In the response-oriented situation, however, the facility (or the regulatory agency) must deal with existing contamination, and must find an acceptable response.Also, remedial actions generally receive intensive government oversight, and remedial decisions are made by a State or Federal Agency only after they thoroughly investigate site-specific

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conditions. In contrast, prevention-oriented hazardous waste regulations are generally implemented independently by facility owner/operators through complying with national regulatory requirements.2. LDRs, MTRs, and Permitting Raise Problems When Applied to Remediation WastesIn the HWIR-media proposed rule, EPA identified the application of three RCRA requirements to remediation wastes as the biggest problems to address; Land Disposal Restrictions (LDRs), Minimum Technological Requirements (MTRs), and permitting.The LDRs (which appear in 40 CFR part 268) generally prohibit land disposal (or ``placement'' in land-based units) of hazardous wastes until the wastes have met the applicable treatment standards. Often this placement is appropriate and desirable when managing remediation wastes to excavate them from their current locations, and temporarily store the wastes before on-site treatment, or to excavate the wastes and accumulate enough volume to ship off-site cost effectively. By not allowing temporary storage and accumulation in land-based units, the LDRs can be a strong disincentive to excavating and managing remediation waste. The staging pile provisions of today's final rule address this issue by allowing temporary storage and accumulation of remediation wastes in a staging pile without being subject to LDR.Another example of the problems with LDRs in the cleanup scenario is that contaminated media are often physically quite different from as-generated process wastes. Contaminated soils often contain complex mixtures of multiple contaminants and are highly variable in their composition, handling, and treatability characteristics. For this reason, treating contaminated soils can be particularly complex, involving one or sometimes a series of custom-designed treatment systems. It can be very difficult to treat contaminated soils to the LDR treatment levels. The parts of the HWIR-media proposal that addressed this issue have been finalized in the LDR Phase IV rule (63 FR 28556 (May 26, 1998)).The MTR requirements were designed as preventative standards for wastes generated through industrial processes. They were not designed for the remedial context. For example, under 40 CFR Subpart F, surface impoundments, waste piles, and land treatment units or landfills must have specific detection, compliance monitoring programs, and corrective action programs for potential groundwater contamination from the unit. These are appropriate preventative requirements for units managing process wastes. However, many cleanup actions involve short-term placement of remediation wastes into a waste pile, and all of these requirements may not be necessary. The staging piles provisions of today's rule address this issue by allowing the Director to determine appropriate design criteria for the staging pile based on the site-specific circumstances such as the concentration of the wastes to be placed in the unit and the length of time the unit will operate. EPA also explained in the preamble to the CAMU rule additional reasons why LDR and MTR requirements can be counterproductive when managing remediation waste as opposed to as-generated process wastes. To read about these additional reasons, see 58 FR 8658 (8659-8661)(February 16, 1993).Finally, another area creating roadblocks is permitting. The time-consuming process for obtaining a RCRA permit can delay cleanups, thereby delaying the environmental and public health benefits of cleaning up a contaminated site. For example, the traditional RCRA permitting process requires the facility owner/operator to submit a great deal of information on activities at the facility to EPA or the State, and the permit must include terms and conditions to protect against any improper waste management practices over the long-term active life of an operating facility. Because of the large volume of information submitted, these permits are huge documents and approval often takes several years. However, in the remedial scenario, cleanup activities are generally a one-time project; once the cleanup is completed and the remediation waste is properly treated and disposed, then the activities are completed. Also, these activities are limited to addressing the contamination at the site, and therefore are often more limited in scope than the operating practices of a facility that is engaged in on-going waste treatment, storage and disposal. To overcome the limitations discussed above from traditional RCRA permits, the new Remedial Action Plans (RAPs) requirements in today's rule streamline the process for receiving a permit for treating, storing and disposing of remediation wastes, and require the facility owner/operator to submit significantly less information than for a traditional RCRA permit. However, the information submitted for a RAP application and RAP terms and conditions must be sufficient to ensure proper waste management of the remediation wastes involved during the life of the cleanup activities.Furthermore, a facility seeking a traditional RCRA permit to manage remediation wastes on-site must investigate and cleanup their entire facility (facility-wide corrective action). This requirement can deter potential cleanups from happening at all. For instance, facility owners and operators may wish to clean up a small portion of their facility for any number of reasons, such as to avoid future liability, to free the property for sale or other uses, or because they simply wish to restore the environmental health of their property. However, they may not be willing to take on the burden of investigating and cleaning up their entire facility, when it is only a small portion they wish to voluntarily clean up, and they may be reluctant to conduct the cleanup under the RCRA corrective action program. Therefore, to encourage cleanups, under today's final rule, facilities that need a RCRA permit only to treat, store, or dispose of remediation wastes (remediation-only facilities) are not subject to the facility-wide corrective action requirement.